The Queen v Wrobel

[2007] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

CA465/07
[2007] NZCA 566

THE QUEEN

v

MAREK KRZYSZTOF WROBEL

Hearing:21 November 2007

Court:Glazebrook, Williams and MacKenzie JJ

Counsel:R G Glover for Appellant

F E Guy Kidd for Respondent

Judgment:10 December 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

ISSUE ON APPEAL

[1]       The appellant, Mr Wrobel, is an admitted, committed, thief.  Indeed, he says his thefts and other offending have a signature modus operandi in that:

·He always offends at crowded venues such as camping grounds.  His offending is therefore at its busiest during the Christmas/New Year holiday period;

·He travels between such venues in a rental car, paid for in cash;

·He only ever steals relatively small sums of money or readily cashable vouchers, even if wallets, cheque books, credit cards, jewellery and other valuable items are there for the stealing;

·With his hooked wire and sandpaper device and his gloves, he is adept at unlocking locked vehicles swiftly and undetectably;  and

·He never damages the vehicles from which he steals.

[2]       Given:

·his modus operandi;

·that he pleaded guilty to a number of charges of theft and unlawful interference with motor vehicles as a result of his offending between  29 December 2005 ‑ 1 January 2006 in the northern part of the South Island;  and

·he says the other offending with which he was charged contravenes his modus operandi

Mr Wrobel appeals to this Court against his conviction on those other counts on the ground the evidence did not meet the standard of proof on those charges.

Facts

Offending

[3]       Mr Glover, counsel for Mr Wrobel, told us the appellant is of Polish origin but is now an Australian citizen who visits New Zealand over the Christmas/New Year period in order to offend.  He was in this country between 26 December 2002 ‑ 15 January 2003 during which, travelling about the South Island in a rental car, he stole from over 600 vehicles.  However, because only 165 incidents were reported to Police, it was only on those that he was prosecuted for theft and unlawful interference with motor vehicles.  He pleaded guilty and was sentenced to imprisonment, being released on 16 November 2005 on parole until 18 May 2006.

[4]       On 29 December 2005 Mr Wrobel travelled to Picton by ferry.  He hired a rental car on arrival, paying in cash.

[5]       Between the date of his arrival in the South Island and his arrest in Christchurch on 4 January 2006, Mr Wrobel committed a number of offences:  he told the Police they arrested him “Before I got to spread my wings”.  When Judge Saunders dealt with an application under s 344A of the Crimes Act 1961 on 8 June 2007, his judgment noted the indictment against Mr Wrobel originally contained 44 counts of theft and unlawful interference with motor vehicles.

[6]       Earlier, on 29 March 2007, Mr Wrobel had pleaded guilty to 25 of those charges, 18 of theft, and the remainder of unlawful interference.  They included charges arising out of Mr Wrobel’s activities:

·on the night of 30 – 31 December 2005 at Old MacDonald’s Farm, Marahau near Motueka (two counts);

·on the night of 1 ‑ 2 January 2006 at Mapua National Park and McKee Domain both in Motueka (nine counts);

·on the night of 2 ‑ 3 January 2006 at the Peketa and Goose Bay camping grounds at Kaikoura (four counts);  and

·the night of 3 ‑ 4 January 2006 at O’Kains Bay camping ground in Akaroa Harbour (10 counts).

[7]       The 18 counts remaining included:

·two of theft of cash, a diamond ring and a purse at Picton on 29 ‑ 30 December 2005;

·eight of theft of varying amounts of cash plus MTA vouchers, Lotto ticket, theft of 10 rings and a purse, all from Takaka between 31 December 2005 ‑ 1 January 2006, that is, on New Year’s Eve; and

·seven of unlawful interference with motor vehicles at Takaka on the same dates.

[8]       To put the appeal in context, when Mr Wrobel was interviewed by Police on 10 January 2006, he acknowledged committing the offences to which he later pleaded guilty, but claimed that after visiting Motueka he “back-tracked along East Coast” to Kaikoura then Akaroa where he was arrested.  He said he “never went over the Takaka Hill to Golden Bay” and that he had not been “further north than the start of the Abel Tasman at the south end, at Marahau at the start of Abel Tasman Track”.

Section 344A application

[9]       The Crown filed an application under s 344A seeking to have ruled admissible evidence relating to the 18 counts to which the appellant pleaded guilty on 29 March 2007 plus details of the offending which led to his imprisonment following his 2002 – 2003 visit.

[10]     The Judge broadly reviewed the facts of the 18 counts, particularly offending in a relatively small geographical area over a short period of time and the targeting of motor vehicles.  He held the Crown could adduce evidence at trial of Mr Wrobel’s admissions and the mode of interference with the vehicles and thefts from them which led to the pleas. 

[11]     However, the Judge declined to admit evidence concerning the earlier offending on the basis that its prejudicial effect outweighed its probative value and, if admitted, risked deflecting the jury from its task of focusing on proof of the remaining counts.

Trial

[12]     As it turned out, however, on the morning the appellant’s jury trial was expected to commence, he opted for trial by Judge alone and, as it happened, the presiding Judge was again Judge Saunders.

[13]     Most of the evidence consisted of statements from vehicle owners concerning their losses and interference with their vehicles.  All those were read.

[14]     The only civilian witness who gave evidence orally related to the alleged theft of the 10 rings and purse at Takaka on the night of 31 December 2005 – 1 January 2006.  A Takaka policeman also gave evidence that the glove-box of one of the cars at the Totaranui Beach camping ground in Golden Bay had been damaged when forced open.

[15]     Constable Finigan, an intelligence analyst for the Police, analysed all the evidence in the case, including the incidence of crimes in various geographical locations said to have been visited by the appellant.  She concluded:

Q.    When you look at the offending as a whole, the reported offences as a whole, have you come to any conclusions?

A.I believe there’s a very strong probability that they were all committed by the same person.

Q.And what’s the basis of that opinion?

A.We’ve got the location in common, that they were all camping grounds.  It was all vehicles that the property was stolen from.  They were all left parked near tents while the complainants were staying overnight.  There was no damage done to get into the vehicles which was very unusual.  The most common MO to break into vehicles in New Zealand is to smash a window or severely damage the door lock to get into the vehicle and there was no damage.  It was predominantly cash that was taken.  It was taken out of wallets.  In my experience most often when cars are broken into people will take the wallets as a whole, not just take cash out of them and leave the cards behind.

Q.Was there anything about the pattern of geographical locations that led you any opinion?

A.Within the timeframes it’s very easy to drive between all of those locations to be one person and to easily travel to each site each day.

[16]     Judge Saunders’ verdict was delivered on 22 June.  After briefly reviewing the evidence, the Judge gave particular attention to the one civilian witness and his evidence of buying a “Lotto” ticket in Takaka on 28 December 2005 and it being in a wallet stolen from the vehicle on New Year’s Eve.  Evidence from the New Zealand Lotteries Commission, however, showed none of the Lotto tickets found in the appellant’s vehicle on his arrest matched the witness’ description of the ticket he and his wife had purchased.  All the “Lotto” ticket evidence was accordingly put aside.

[17]     The Judge then reviewed the evidence concerning the charges to which Mr Wrobel had pleaded guilty on 29 March 2007, noting the modus operandi evidence showed lack of damage to the vehicles, concentration on cash or cashable vouchers, offending at night in camping grounds and an “absence of any other proved offending of a similar kind within a 10 kilometre radius” (at [36]).

[18]     The Judge reminded himself of the cautious approach to the establishment of identity through similar fact evidence enjoined by this Court in R v Holtz [2003] 1 NZLR 667 at [46]. He also assessed the level of prejudice arising out of similar fact evidence by posing the converse case suggested by this Court in R v Cruden [2007] NZCA 537. The Judge reviewed the contrasting submissions and the appellant’s assertions as to his modus operandi before turning to the two Picton counts.  He acquitted the appellant on both holding:

[46]Cash and jewellery in a small purse were stolen from the vehicle, with the wallet left behind in a similar fashion to the offences which occurred over the next five days.

[47]Is the fact that the Accused can be shown to be in Picton at the date of this crime coupled with the nature of the theft and unlawful entry when compared to the proved offending over the next few days sufficient to allow the Court to say it is proved beyond reasonable doubt that Mr Wrobel was the thief?

[48]Applying the standard of proof required in a criminal trial I am unable to say that the finger of suspicion which points towards Mr Wrobel in respect of this particular offence amounts to proof beyond reasonable doubt.

[49]I note that in relation to the cash stolen and his subsequent use of cash to pay the rental company for the rental car is not an additional piece of circumstantial evidence that strengthens any inference of guilt.

[50]Had Mr Wrobel been less forthcoming about his activities in the interview the court may well have concluded that there was no legitimate means by which Mr Wrobel could have paid for the vehicle rental except by commission of a theft of an amount similar to that reported by the Olds.

[19]     The Judge reached the opposite conclusion, however, on all the Takaka/Golden Bay counts, holding:

[51]In relation to the subsequent offending at Totaranui on 31 December and 1 January I find that a different conclusion is able to be reached applying the standard of proof that the Crown must discharge at a criminal trial.

[52]The Accused has acknowledged offending at Marehau on 30 December and again at Mapua and McKee Domain on 1 January.  He offended again on the two succeeding nights, and apart from his claim in the interview to have been elsewhere on the night of 31 December there is no supporting evidence in that regard.

[53]It would in my view be an extraordinary coincidence to find that on the one night Mr Wrobel did not offend after he hired the rental car that another thief exhibiting a strikingly similar method of offending should have committed a series of thefts at the Totaranui Camp and then failed to offend again in the Nelson area.

[54]I accept the Crown Prosecutor’s analysis of the offending and find it is open to reject the proposition put to the Detectives in evidence that the Accused had provided the names of two German backpackers with whom he spent the night.

[55]Mr Wrobel’s claim to have derived cash from fruit picking jobs was also incredible and I therefore reject his denial that he went into the Golden Bay area.

[56]The evidence of the general pattern of offending combined with the particular way the offender committed the offences at Totaranui when compared with admitted offending in Nelson, Kaikoura and Okains Bay lead me to the conclusion that a verdict of guilty is justified when the burden and standard of proof is applied.

[57]The fact that the rings stolen in the theft from Giselle Storer were not located four days later does not in my view shake the conclusion I have reached.  In this case there was ample time to dispose of the purse and rings and I do not consider this theft allegation to be out of keeping with others made by the many other complainants on the morning of 1 January.

[58]I record that I am satisfied that the same offender was responsible for all the offences detected at Totaranui and on my findings I find the Accused guilty in respect of each charge contained in Counts 3‑18.

Submissions

[20]     Mr Glover stressed the appellant’s assertions to the Police that he did not commit the Picton offences – which the Judge accepted – and never travelled over the Takaka Hill to commit the Totaranui offences – on which the Judge reached the opposite conclusion.

[21]     He submitted that the Judge erred in regarding as important pieces of circumstantial evidence aspects of the offending which were no more than commonplace for such crimes.  He stressed the vehicle damage and the theft of items other than cash pointed strongly away from the appellant’s guilt.  Any cogency they might have had did not go beyond mere propensity:  R v M [1999] 1 NZLR 315 (CA) as cited in R v Jones (2003) 20 CRNZ 583 at [21] (CA).

[22]     The Crown case, Mr Glover suggested, effectively asserted that no one other than the appellant was in the area at the relevant time breaking into cars.  Despite Constable Finigan's conclusions, Mr Glover made the point that there was no evidence whatever of the appellant visiting Golden Bay, Takaka or Totaranui at the relevant time.  The evidential aspects relied on by the Judge, he suggested, may have been no more than coincidence.  Certainly, he submitted, they did not amount to proof to the required standard.  He particularly relied on the passage from Holtz where this Court held:

[36]      We are not persuaded that it is necessary to have different rules governing the admission and use of evidence of past conduct where identity is the issue. We do accept, however, that where the evidence is to be given with a view to establishing identity, care is necessary in assessing probative value. There is a real danger of being seduced by invalid reasoning. Evidence of a past incident which might have been that of the accused may have no probative value (or even relevance) in establishing that it was the accused who was responsible for the crime charged. That he or she might have been responsible for both incidents, without more, cannot amount to proof beyond reasonable doubt. There must be something that points to both incidents having been the responsibility of the same person and that the accused was responsible for one of them before the evidence is probative. That something may be provided in many ways. Striking similarity in the two incidents may be one of them. Other evidence linking the incidents and the accused may be available. Instead of one, there may be a series of previous incidents, each separately having little distinctiveness but when taken together compel the exclusion of coincidence.

[23]     For the Crown, Mrs Guy Kidd detailed the admitted and alleged offending chronologically making the point the appellant admitted offending in Motueka on the night of 30 – 31 December 2005 and again on the night of 1 – 2 January 2006.  All the offending in Golden Bay occurring on the intervening night, New Year’s Eve.  Naturally, Mrs Guy Kidd stressed what she suggested were strong similarities in the offending, both admitted and contested, and suggested the Judge correctly directed himself.  She concluded it was well open to the Judge to take the view that, notwithstanding the appellant’s denials, the Crown’s evidence pointed strongly to his offending on the one night in seven he denied it.

Discussion and decision

[24]     The appellant’s trial was one where the Crown had earlier persuaded the Judge to admit evidence of offending other than that which was contested and, it must be said immediately, the evidence of similar fact was significantly pointed.  All the offending, both admitted and defended:

·occurred in a compressed time frame;

·involved undetected entry into motor vehicles, all of which could have occurred with the device found in the appellant’s possession on arrest;

·involved at least the theft of cash or readily cashable vouchers; and

·occurred within easy range of other offending, all of it admitted, by use of a motor vehicle which the appellant admitted hiring.

[25]     True, certain damage was caused to vehicles in some of the contested accounts, but that may be readily explicable through haste or inadvertence on the part of the thief.  The damage was consistent with the imperfect execution of the appellant’s usual method of entering locked vehicles.

[26]     True, too, items other than cash or vouchers were taken in some of the contested instances.  That seems to run counter to the appellant’s modus operandi, but may again be readily explicable through haste or oversight.

[27]     True, also, the appellant admitted what he said was all his offending.  From that an inference is available that he genuinely believed he was innocent of the counts he contested.  But his account of his activities on New Year’s Eve ‑ he said he spent the night on the beach at Marahau with two German female backpackers ‑ was, the Judge thought, implausible and out of character for a man engaged in committing as many thefts as possible.  It may have been prompted by other motives and in any case it is an assertion out of the mouth of a man with a very significant history of dishonesty.  That was a finding of credibility with which this Court should not interfere.

[28]     Overall, the appellant must demonstrate to us that the Judge fell into error of law or reached conclusions unsustainable on the evidence he had the advantage of seeing and hearing.

[29]     We take the view that criticism regarding the aspects of law by which the Judge guided himself cannot be substantiated.  The factual conclusions he reached were plainly available on the evidence.

Result

[30]     In the result, no ground has been made out to disturb the Judge’s findings and, accordingly, the appeals against conviction are dismissed.

Solicitors:

Crown Law, Wellington